NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 16-3887 ______________

YUSEF ALLEN, Appellant

v.

THE ADMINISTRATOR NEW JERSEY STATE PRISON; THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY ______________

On Appeal from the United States District Court for the District of New Jersey (D.C. Civ. No. 2-13-cv-04304) District Judge: Honorable Kevin McNulty ______________

Submitted under Third Circuit LAR 34.1(a) November 6, 2018

BEFORE: HARDIMAN, KRAUSE, and GREENBERG, Circuit Judges

(Filed: December 3, 2018) ______________

OPINION* ______________

GREENBERG, Circuit Judge.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. I. INTRODUCTION

This matter comes on before this Court on an appeal from an order of the District

Court entered on September 6, 2016, denying appellant Yusef Allen’s petition for a writ

of habeas corpus following his conviction and sentencing at a jury trial and numerous

state court post-trial proceedings in a murder case with related charges in the New Jersey

Superior Court.1 The District Court had jurisdiction under

and we have

jurisdiction under

. The District Court denied the petition in a

comprehensive opinion. Allen v. Warren, Civ. No. 13-4304,

(D.N.J.

Sept. 6, 2016).

We conclude, exercising plenary review because the District Court did not hold an

evidentiary hearing, that for substantially the same reasons that the Court set forth in its

opinion, Allen is not entitled to relief on either ground one or ground seven in his petition

for habeas corpus, both of which pertain to the prosecutor’s alleged misconduct. Though

his petition included other grounds on which he sought relief, these were the only

grounds on which we granted a certificate of appealability. We have nothing significant

to add to the Court’s comprehensive opinion though we do note that the state courts in

rejecting Allen’s claims did not make any decision that fair minded jurists could agree

was contrary to, or involved an unreasonable application of clearly established federal

law as determined by the Supreme Court of the United States or was based on an

unreasonable determination of the facts based on the evidence presented in the state court

1 We are satisfied that even though the District Court received Allen’s notice of appeal after the final filing date, it was timely under the mail box rule. Fed. R. App. P. 4(c)(1). 2 proceedings. See

(d); Harrington v. Richter,

,

(2011).

We also point out that even if Allen had been entitled to habeas corpus relief by

reason of the prosecutor’s alleged misconduct, the relief likely would have resulted in a

new trial. See Slutzker v. Johnson,

(3d Cir. 2004). Yet the state trial

court in response to Allen’s objections to events at the trial several times offered to

declare a mistrial and thus effectively grant Allen a new trial but Allen declined the offer.

Rather than accept new trial relief when it was available, he preferred to take his chances

on being acquitted in the proceeding then pending.

Finally, we point out that to be successful on a prosecutorial misconduct claim a

defendant must show that the misconduct “so infected the trial with unfairness as to make

the resulting conviction a denial of due process.” Darden v. Wainwright,

,

(1986) (internal quotation marks omitted) (quoting Donnelly

v. DeChristoforo,

,

(1974)). After our plenary

review of the matter, we are satisfied that Allen’s case does not meet that standard for the

reasons that the District Court set forth.

The order of September 6, 2016, denying the petition for habeas corpus will be

affirmed.

3